A man who was said to have gone around Kilkenny confessing to people “left right and centre” that he had killed a woman in 1987, has had his conviction for murdering her 30 years earlier upheld by the Court of Appeal.
John Joseph Malone (54), of Newpark, Kilkenny City, had pleaded not guilty at the Central Criminal Court to the murder of 69-year-old Ann “Nancy” Smyth at her home on Wolfe Tone Street, Kilkenny on September 11th, 1987.
He was not charged with Mrs Smyth’s murder for 27 years.
Malone was unanimously found guilty by a jury and was given the mandatory life sentence by Mr Justice Patrick McCarthy on April 13th, 2017. He lost an appeal against his conviction this Thursday, with the Court of Appeal holding that Malone’s trial was fair and his ability to mount a defence was not unduly hampered by the lengthy delay.
Giving judgment in the three-judge court, Mr Justice Alan Mahon said Mrs Smyth, a widow who lived alone, was killed in her home on the night of September 11th, 1987. That night, she had visited a local pub, consumed a number of drinks and was dropped home by the publican shortly after midnight. At around 3.45am, smoke was observed coming from Mrs Smyth’s house. A flicker of flame was seen at 5.10am and the fire brigade and other emergency services were alerted. It was initially believed her death was accidental, but a post mortem examination revealed the cause of death to have been asphyxia due to manual strangulation. Her Labrador also died in the fire.
Four witnesses gave evidence of having seen Malone outside Mrs Smyth’s house between midnight and 1am. Two of them gave evidence of hearing a heated argument between Malone and Mrs Smyth. Geraldine Brennan, gave evidence of having heard Malone threaten Mrs Smyth. A further four individuals gave evidence of Malone having confessed to them over the years that he had been responsible for Mrs Smyth’s death. These included Malone’s brother, Bernard Malone and his former wife Ann Malone. Another witness Eileen Kelly, gave evidence that Malone had admitted killing Mrs Smyth to her but maintained that he had not intended to do so. She gave evidence that Malone had demonstrated to her how he had placed his hands on Mrs Smyth’s neck and squeezed her throat.
Mr Justice George Birmingham remarked during the appeal hearing that three people, other than Geraldine Brennan, on whom the appeal was focused, had put Malone at the scene at a relevant time and Malone had been going around Kilkenny confessing to people “left right and centre” in the years that followed.
He said he had left the area and returned home around 2am. He denied murdering Mrs Smyth and denied having entered her home on the date in question. He was not charged for a further 27 years.
His trial commenced nearly 30 years after Mrs Smyth’s death.
Counsel for Malone, Colman Cody, said the initial Garda investigation in 1987 had “stalled”. In 2012 a “cold case” review was conducted and there was a reconstruction on RTÉ’s Crimecall programme which brought forward additional confession evidence.
Mr Cody submitted that a fair trial was impossible due to the delay in prosecuting his client. He said his client was prejudiced by the non-availability of certain witnesses due to the passage of time and the frailty of memory that naturally occurs over 30 years.
Mr Justice Mahon said the trial judge was correct in refusing to accede to a request to withdraw the case from the jury at the close of the prosecution case. Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards said the court was satisfied that Malone’s trial was fair and that his ability to mount a defence was not unduly hampered by the lengthy delay. The appeal was therefore dismissed.